Filed Washington State Court of Appeals Division Two
March 18, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 58369-1-II
Respondent,
v.
JARROD ALLAN AIRINGTON, PUBLISHED OPINION
Appellant.
CRUSER, C.J.—Jarrod A. Airington appeals from the trial court’s denial of his second CrR
7.8 motion. Because the trial court failed to determine that Airington had good cause for failing to
raise his new issues in his prior collateral attacks, the trial court erred in deciding the second CrR
7.8 motion on its merits. But because the record fails to demonstrate that Airington had good cause
for filing a successive CrR 7.8 motion, we affirm the trial court’s decision.
FACTS
I. CONVICTION AND APPEAL
In February 2019, a jury convicted Airington of first degree kidnapping, second degree
assault, two counts of unlawful possession of a controlled substance (methamphetamine and
heroin) with intent to deliver, and first degree unlawful possession of a firearm. Airington
appealed. No. 58369-1-II
Division Three of this court affirmed the convictions but remanded the matter for
resentencing following State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021).1 State v. Airington,
No. 37975-2-III, slip op. at 1 (Wash Ct. App. Sept. 30, 2021) (unpublished),
https://www.courts.wa.gov/opinions/pdf/379752_unp.pdf. The appeal mandated in February
2022. The trial court entered an amended judgment and sentence on April 15, 2022.
II. PRIOR CRR 7.8 MOTION AND PERSONAL RESTRAINT PETITION
On May 20, 2022, a little over a month after entry of the amended judgment and sentence,
Airington filed his first collateral attack on his judgment and sentence in the trial court. In a timely
CrR 7.8 motion, he asked the trial court to find that the evidence was insufficient to support his
first degree unlawful possession of a firearm conviction. The trial court transferred the motion to
this court for consideration as a personal restraint petition (PRP) under CrR 7.8(c)(2) after having
determined that (1) the motion was untimely under RCW 10.73.090, (2) Airington had not made
a substantial showing that he was entitled to relief, and (3) resolution of the matter would not
require a factual hearing.
In November 2022, Airington filed a new pleading challenging the adequacy of the
charging document for the firearm offense that this court accepted as a timely supplement to his
PRP. Decl. of Statement of Additional Grounds, In re Pers. Restraint of Airington, No. 57352-1-
II at 1-2 (Wash. Ct. App. Nov. 16, 2022); Ruling, Airington, No. 57352-1-II (Wash. Ct. App. Nov
21, 2022).
1 The issues raised in the appeal were not the same as the issues in the CrR 7.8 motion currently before us.
2 No. 58369-1-II
We held that this PRP was timely in light of his resentencing. In re Pers. Restraint of
Airington, No. 57352-1-II (Wash. Ct. App. Apr. 30, 2024) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2057352-1-II%20Unpublished%20Opinion.pdf.
But we denied the PRP because his arguments either lacked merit or he was unable to demonstrate
actual and substantial prejudice. Id. at 2.
Meanwhile, on January 11, 2023, Airington initiated a second timely collateral attack on
his judgment and sentence by filing a PRP in this court. We transferred this PRP to our supreme
court as successive. Ord. Transferring Pet., In re Pers. Restraint of Airington, No. 57769-1-II
(Wash. Ct. App. Mar. 28, 2024). The deputy commissioner of the supreme court dismissed the
PRP as frivolous.2 Ruling Dismissing Pers. Restraint Pet., In re Per. Restraint of Airington, No.
102907-1 (Wash. Apr. 9, 2024) at 4.
III. SECOND 7.8 MOTION
In March 2023, while Airington’s other collateral reviews were still pending, Airington
initiated a third timely collateral attack on his judgment and sentence by filing a CrR 7.8 motion
in the trial court. In this motion, Airington argued that the trial court erred when it calculated his
offender score because it included (1) two washed-out juvenile offenses and (2) three prior felony
firearm convictions that were “facially invalid [due] to insufficient charging document
informations” that omitted the “knowledge” element of the offense of unlawful possession of a
firearm. Clerk’s Papers at 82, 85. Airington also asserted that he had been unable to raise these
2 In this PRP, Airington did not raise any of the issues he raised in the CrR 7.8 motion currently before us.
3 No. 58369-1-II
new issues in his earlier collateral attacks because of a “lack of documentation to support these
arguments.” Id. at 82.
The trial court considered the March 2023 motion. Without hearing argument from the
parties or discussing whether Airington had good cause for not previously raising his new issues,
the trial court denied the motion because it “lack[ed] merit.” Verbatim Rep. of Proc. at 20.
The trial court issued written findings of fact and conclusions of law regarding the denial
of the March 2023 motion. These findings addressed the merits of Airington’s arguments. But they
did not address whether the motion was successive or whether Airington’s assertion that he could
not have raised these issues in his earlier collateral attacks amounted to just cause for failing to
previously raise this issue.
Airington appeals the trial court’s denial of his March 2023 CrR 7.8 motion.
ANALYSIS
Airington argues that the trial court erred when it rejected his argument that his prior
unlawful possession of a firearm convictions should not have been included in his offender score
and denied his timely CrR 7.8 motion on the merits.3 Because Airington’s motion was a subsequent
collateral attack and the trial court did not make findings regarding whether Airington had good
cause for failing to raise these new grounds in his previous collateral attacks, the trial court erred
by denying the motion on its merits. But because the record does not establish good cause for filing
a subsequent collateral attack under RCW 10.73.140, which applies to collateral attacks brought
in the trial court through CrR 7.8(b), we affirm the trial court.
3 Airington appears to have abandoned his juvenile washout argument.
4 No. 58369-1-II
CrR 7.8 motions are a form of collateral attack and are subject to the restrictions placed on
successive petitions stated in RCW 10.73.140. CrR 7.8(b);4 In re Pers. Restraint of Becker, 143
Wn.2d 491, 496, 20 P.3d 409 (2001); State v. Fletcher, 19 Wn. App. 2d 566, 578, 497 P.3d 886
(2021). Where, as here, a defendant has already filed a prior collateral attack in the trial court, the
trial court must determine whether a subsequent collateral attack is barred under RCW 10.73.140
before considering the merits of the defendant’s arguments. See State v. Brand, 120 Wn.2d 365,
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Filed Washington State Court of Appeals Division Two
March 18, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 58369-1-II
Respondent,
v.
JARROD ALLAN AIRINGTON, PUBLISHED OPINION
Appellant.
CRUSER, C.J.—Jarrod A. Airington appeals from the trial court’s denial of his second CrR
7.8 motion. Because the trial court failed to determine that Airington had good cause for failing to
raise his new issues in his prior collateral attacks, the trial court erred in deciding the second CrR
7.8 motion on its merits. But because the record fails to demonstrate that Airington had good cause
for filing a successive CrR 7.8 motion, we affirm the trial court’s decision.
FACTS
I. CONVICTION AND APPEAL
In February 2019, a jury convicted Airington of first degree kidnapping, second degree
assault, two counts of unlawful possession of a controlled substance (methamphetamine and
heroin) with intent to deliver, and first degree unlawful possession of a firearm. Airington
appealed. No. 58369-1-II
Division Three of this court affirmed the convictions but remanded the matter for
resentencing following State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021).1 State v. Airington,
No. 37975-2-III, slip op. at 1 (Wash Ct. App. Sept. 30, 2021) (unpublished),
https://www.courts.wa.gov/opinions/pdf/379752_unp.pdf. The appeal mandated in February
2022. The trial court entered an amended judgment and sentence on April 15, 2022.
II. PRIOR CRR 7.8 MOTION AND PERSONAL RESTRAINT PETITION
On May 20, 2022, a little over a month after entry of the amended judgment and sentence,
Airington filed his first collateral attack on his judgment and sentence in the trial court. In a timely
CrR 7.8 motion, he asked the trial court to find that the evidence was insufficient to support his
first degree unlawful possession of a firearm conviction. The trial court transferred the motion to
this court for consideration as a personal restraint petition (PRP) under CrR 7.8(c)(2) after having
determined that (1) the motion was untimely under RCW 10.73.090, (2) Airington had not made
a substantial showing that he was entitled to relief, and (3) resolution of the matter would not
require a factual hearing.
In November 2022, Airington filed a new pleading challenging the adequacy of the
charging document for the firearm offense that this court accepted as a timely supplement to his
PRP. Decl. of Statement of Additional Grounds, In re Pers. Restraint of Airington, No. 57352-1-
II at 1-2 (Wash. Ct. App. Nov. 16, 2022); Ruling, Airington, No. 57352-1-II (Wash. Ct. App. Nov
21, 2022).
1 The issues raised in the appeal were not the same as the issues in the CrR 7.8 motion currently before us.
2 No. 58369-1-II
We held that this PRP was timely in light of his resentencing. In re Pers. Restraint of
Airington, No. 57352-1-II (Wash. Ct. App. Apr. 30, 2024) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2057352-1-II%20Unpublished%20Opinion.pdf.
But we denied the PRP because his arguments either lacked merit or he was unable to demonstrate
actual and substantial prejudice. Id. at 2.
Meanwhile, on January 11, 2023, Airington initiated a second timely collateral attack on
his judgment and sentence by filing a PRP in this court. We transferred this PRP to our supreme
court as successive. Ord. Transferring Pet., In re Pers. Restraint of Airington, No. 57769-1-II
(Wash. Ct. App. Mar. 28, 2024). The deputy commissioner of the supreme court dismissed the
PRP as frivolous.2 Ruling Dismissing Pers. Restraint Pet., In re Per. Restraint of Airington, No.
102907-1 (Wash. Apr. 9, 2024) at 4.
III. SECOND 7.8 MOTION
In March 2023, while Airington’s other collateral reviews were still pending, Airington
initiated a third timely collateral attack on his judgment and sentence by filing a CrR 7.8 motion
in the trial court. In this motion, Airington argued that the trial court erred when it calculated his
offender score because it included (1) two washed-out juvenile offenses and (2) three prior felony
firearm convictions that were “facially invalid [due] to insufficient charging document
informations” that omitted the “knowledge” element of the offense of unlawful possession of a
firearm. Clerk’s Papers at 82, 85. Airington also asserted that he had been unable to raise these
2 In this PRP, Airington did not raise any of the issues he raised in the CrR 7.8 motion currently before us.
3 No. 58369-1-II
new issues in his earlier collateral attacks because of a “lack of documentation to support these
arguments.” Id. at 82.
The trial court considered the March 2023 motion. Without hearing argument from the
parties or discussing whether Airington had good cause for not previously raising his new issues,
the trial court denied the motion because it “lack[ed] merit.” Verbatim Rep. of Proc. at 20.
The trial court issued written findings of fact and conclusions of law regarding the denial
of the March 2023 motion. These findings addressed the merits of Airington’s arguments. But they
did not address whether the motion was successive or whether Airington’s assertion that he could
not have raised these issues in his earlier collateral attacks amounted to just cause for failing to
previously raise this issue.
Airington appeals the trial court’s denial of his March 2023 CrR 7.8 motion.
ANALYSIS
Airington argues that the trial court erred when it rejected his argument that his prior
unlawful possession of a firearm convictions should not have been included in his offender score
and denied his timely CrR 7.8 motion on the merits.3 Because Airington’s motion was a subsequent
collateral attack and the trial court did not make findings regarding whether Airington had good
cause for failing to raise these new grounds in his previous collateral attacks, the trial court erred
by denying the motion on its merits. But because the record does not establish good cause for filing
a subsequent collateral attack under RCW 10.73.140, which applies to collateral attacks brought
in the trial court through CrR 7.8(b), we affirm the trial court.
3 Airington appears to have abandoned his juvenile washout argument.
4 No. 58369-1-II
CrR 7.8 motions are a form of collateral attack and are subject to the restrictions placed on
successive petitions stated in RCW 10.73.140. CrR 7.8(b);4 In re Pers. Restraint of Becker, 143
Wn.2d 491, 496, 20 P.3d 409 (2001); State v. Fletcher, 19 Wn. App. 2d 566, 578, 497 P.3d 886
(2021). Where, as here, a defendant has already filed a prior collateral attack in the trial court, the
trial court must determine whether a subsequent collateral attack is barred under RCW 10.73.140
before considering the merits of the defendant’s arguments. See State v. Brand, 120 Wn.2d 365,
370, 842 P.2d 470 (1992) (RCW 10.73.140 applies to collateral attacks filed in the trial court by
analogy through CrR 7.8(b); “a court may not consider a CrR 7.8(b) motion” if the movant does
not comply with RCW 10.73.140); Fletcher, 19 Wn. App. 2d at 578-79. Under RCW 10.73.140,
a second or subsequent collateral attack will not be considered unless the defendant certifies “ ‘that
he or she has not filed a previous petition on similar grounds, and shows good cause why [they]
did not raise the new grounds in the previous petition.’ ” Fletcher, 19 Wn. App. 2d at 578-79
(emphasis added) (quoting RCW 10.73.140).
The parties do not dispute that Airington raised new issues in his March 2023 CrR 7.8
motion. But, although Airington alleged in his March 2023 motion that he could not have raised
his new issues in his prior collateral attacks because he did not have access to the necessary
documentation, the trial court never addressed whether this amounted to good cause for failing to
previously raise this issue. The trial court’s failure to consider good cause before considering the
merits of the motion was error.
4 CrR 7.8(b) provides, in part, that CrR 7.8(b) motions are “subject to RCW 10.73.090, .100, .130, and .140.”
5 No. 58369-1-II
But because the record before us is the same as the record before the trial court, we may
consider whether Airington established good cause. See Fletcher, 19 Wn. App. 2d at 580-81
(rejecting trial court’s good cause analysis and concluding there was a lack of good cause based
on existing record). We hold that he did not. Although Airington asserted that he was unable to
file his third collateral attack earlier because he was having problems locating the documentation
necessary to support his arguments, he was in fact able to locate the documents in time to file a
timely collateral attack raising these arguments. This demonstrates that there was no good cause
for failing to raise the new issues in his original collateral attack because he could have either
waited to file a single, timely collateral attack or moved to amend his first collateral attack, which
was still pending before this court, to include the same issues within the one-year time-bar period.
Because the record demonstrates that Airington did not have good cause for failing to
include the new issues in his first collateral attack, his motion was barred under RCW 10.73.140
and, ultimately, dismissal was still appropriate. Accordingly, we affirm the trial court.5
CRUSER, C.J. We concur:
VELJACIC, J.
CHE, J.
5 We note that because this is an appeal from the trial court’s decision on the merits and not a CrR 7.8 motion that was transferred to this court for consideration as a PRP, we cannot transfer the motion to our supreme court under RCW 10.73.140. Fletcher, 19 Wn. App. 2d 581.